- Hi, everyone.
I'm attorney Aiden Durham with 180 Law Co. in Colorado.
Welcome back to "All Up In Yo' Business,"
where we're gonna be going through your comments
and answering your trademark questions.
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Before we get into all of your great trademark questions,
I have three very important announcements.
Announcement number one.
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You can find answers to all of your trademark questions
in my free guide, the "BRANDISH" ultimate trademark guide.
You can download it for free
by clicking the link in the description.
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All right, let's get into your trademark questions.
"Hi, we have an LLC since 2019 and this week,
doing a search on the internet for our company name,
we find out that the other company has our exact name
in a different state.
We offer the exact same services.
What do I need to do?"
You know, you don't need to do anything.
What you should do is consult with a trademark lawyer
because there are a lot more details in here
that we're gonna need to know
before we can say really what you should do.
So talk to a lawyer.
But what would I do?
I would first see
if that other company has registered a trademark
with the USPTO for the name
because that will impact your options and what you do.
I would also look into when they started their company,
when their company started, which,
if they have a trademark registration,
it would say their date of first use there,
and so that would give you an idea
of who has first use here.
But so it's gonna come down to those two things.
If neither company has a registered trademark,
if they don't have one,
but they've been using since before you,
it will kinda come down to common law rights,
and those are usually restricted
to your geographic scope
where you've been using the trademark.
All kinds of stuff comes into it.
So it depends.
You should talk to a trademark lawyer,
like, actually consult with one,
not just leave a comment on YouTube.
"Hi there.
I was wondering, if I'm outside of the US,
to what organism should I go to
to do the trademark registration process?"
So I think that's supposed to be organization,
but I like organism too.
If you wanna register the trademark in the US,
if you're using it in the US, then you would go
to the United States Patent and Trademark Office
at uspto.gov to do that trademark registration.
If you're outside of the US,
it's gonna be whatever agency,
governmental body handles trademark registrations
in whatever country you wanna register in.
Every country has their own trademark system and agency.
I don't know all of them.
"So how do you register a copyright to protect your designs?
Do trademarks only protect the logo itself?"
So I think this is getting to the idea
of a logo being a trademark
and being protectable by trademark registration,
but a logo also can sometimes be protectable by copyrights
if it has enough artistic creative expression in it,
which certainly happens, but it's not...
Not every logo is also a copyright.
Doing a trademark registration protects the trademark.
In this instance, it's the logo.
So yeah, trademarks protect the logo.
There might be elements to it
that are also protectable by copyrights,
and copyrights would protect those elements,
but in a very different way than how the trademark does.
So you register the copyright at copyright.gov,
the US Copyright Office, and then yes,
trademarks only protect the logo.
"To clarify, the first use of a trademark is the first sale
of a product or service between state lines
or to another territory or country?"
Yes, for the most part.
That's an easy way to think about it. That's not...
So you have to have interstate commerce
to be considered use in commerce or interstate
or over to another country or territory
to be considered use in commerce
for purposes of getting a US trademark registration.
And so interstate, between state lines.
That's not always...
It's not always clear black and white, though.
There are instances, like with a restaurant.
A restaurant that might be located in just one state,
you might think, "Well, they're only serving people there.
That's not interstate commerce."
But people travel from out of state
to get to that restaurant,
so it's generally accepted, like for restaurants,
that's usually considered interstate commerce.
So again, it's not totally black and white, but yeah.
Sale of a product or service between state lines.
That's your date of first use, usually.
Again, there's more to it, like nominal sales.
Like, if you just sold one product to your friend who lives
in a different state just for the sake of making the sale,
no, that doesn't count.
But generally, yeah, the answer is yes.
"So are you suggesting that you have to already be using
your trademark idea openly before filing?"
No.
"So how do you keep people from stealing it
and filing it before you?"
No.
So you have to be using your trademark in commerce
before it will get registered,
so you have to be using your idea openly
before the trademark will be registered.
You don't have to do that before filing.
You can file on a 1b intent-to-use basis
to kinda get it protected
and stop people from filing before you
if you wanna do so before you start your business
and start using the thing openly.
"I just had a quick question.
I don't know if you have a phone number,
I know you said you can't give legal advice,
but this is not legal."
We'll see about that.
"This question is I am just doing funny videos
on YouTube or TikTok.
Do I need or should I register a trademark on that stuff
or is it even necessary?
That's a simple question, I hope."
Quick questions never have quick answers, you guys.
"On that stuff."
Depends, number one, on what you mean by that stuff.
Your videos? Your videos can't, aren't...
I shouldn't say can't.
Your video content isn't a trademark.
There are ways you could maybe use it as a trademark,
but no, your videos aren't protectable by trademarks.
Those are copyrights.
You could register the copyrights
to kinda protect your copyrights in those videos.
The name, I guess, or your handle
of your YouTube channel or your TikTok account,
those could be considered trademarks,
so you could register those.
Do you have to? No.
Is it a good idea?
If you want to, if you wanna protect them.
Registering the trademark is a good idea.
"Hello, Aiden.
If the name Nuphaze Lifestyle Nutrition is a trademark,
can I use NuPhaze Nurse for IV Infusion?"
I'm assuming Nuphaze Lifestyle Nutrition is being used
for nutrition-based products
and NuPhaze Nurse is IV infusion,
so just based on the names alone, no other information,
I'd say there's a good chance just based on the names alone
that they'd be confusingly similar
and the USPTO wouldn't register it.
Now, we have to factor in the goods and services.
Nutrition is, I could see the USPTO seeing that
as closely related to IV infusion
because they both are vitamin related,
you know, vitamin supplements.
Those IV infusions are vitamin supplements, basically.
Yeah, I don't think you would get that registered
if Nutrition Lifestage Nutrition
or Nuphaze Lifestyle Nutrition is already registered.
Yeah, I don't think you'd be able to.
No, they're definitely confusingly similar,
and the USPTO wouldn't register them.
I mean, you've got other ways around it, but no.
Just based on that, I highly doubt it.
You should talk to a trademark lawyer, though.
"Question: I want to register a brand name in three classes.
However, I do not have the symbol/logo ready yet.
Is it possible to register the brand name now
and the logo later, or does it make sense
to register both at the same time?"
It absolutely makes sense to register the name now
and you can do the logo later.
It's best to do, you know, to apply
for all your trademark registrations as early as possible,
but that's not always, you know,
you can't always do a bunch at once, so yeah.
That's fine to do the name now and then do the logo later
whenever you've got the time and resources available to you.
"Hello, am I able to trademark a name
and logo at the same time?"
Absolutely. Yep.
Well, not on the same application.
They're two different trademarks,
so do two different applications, but yeah,
you can submit them at the same time, same day.
"Okay, but on the USPTO,
they want me to pick a particular product, like T-shirts.
What if down the line I want to diversify?
And I certainly would.
What if I want to get into sporting goods, anything else?"
You can still do that.
Just because your trademark registration is only specific
to T-shirts, that's not preventing you
from selling whatever else you want to.
As far as registration planning,
you can apply for all the other products on a 1b basis,
and the T-shirts would be on a 1a basis.
So that way you're starting the protection
for the T-shirts right away,
and then you're kind of getting your foot in the door
and slowly starting for the other product,
assuming you're gonna start selling them
in, like, three to four years.
"What's better, a trademark or copyright
for a phrase, motto, or slogan?"
As long as you're using it as a trademark,
so you're using it as a brand identifier
or something like that, then a phrase,
motto, or slogan is a trademark.
They're not really copyrights.
I guess they could.
There are some instances. But no.
Those things are trademarks, not copyrights.
I left this one in.
It's not trademark related,
but I thought it was just an important question.
"What if you hire an attorney
and you don't like the way they work?
What do you do?"
This is a great question.
I'm sure this happens all the time.
I'm sure I have some clients who wish they hadn't hired me.
I'm just kidding, all my clients love me.
So the first thing,
if you feel comfortable, tell your lawyer.
Tell the lawyer what is bothering you,
what you're unhappy about, ways that you would like
to see your relationship with them change.
If one of my clients said something like that to me,
it would be very important.
I wanna make sure I'm serving my clients
the way that they want to be
and that I'm making their experience with me the best I can.
So if there's some way that I can improve that service,
I would love to hear that from my clients,
assuming you're comfortable doing that and all of that.
If they ignore you, if they're offended,
if they, you know, don't like it,
if for some reason that doesn't solve the problem,
then you can fire your lawyer.
I guess there might be some states
where this isn't possible.
No, you can fire your lawyer whenever you want.
You're not, like, bound to a lawyer.
You may have some contractual obligations.
You may not be able to get, like,
a refund of all of your fees, but,
or any of your fees, really,
but you can fire your lawyer whenever you want
and go look for another one.
You know, you don't have to feel bad.
I mean, don't be rude about it unless they deserve it.
But yeah, you don't have to work with a specific lawyer.
You can change to any other lawyer. Okay.
Thank you all so much
for your great comments and questions.
I hope you learned a thing or two.
Gimme a thumbs up if you did
or just gimme a thumbs up
if you like my new Britney shirt.
Don't forget to check the link in the description
to download my free ultimate "BRANDISH" trademark guide.
So many more answers to so many of your questions.
Thank you all so much for watching.
I'm Aiden Durham and I'll see you next time.
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